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[2017] ZAKZPHC 32
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S v Xulu (A559//2016) [2017] ZAKZPHC 32 (23 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION
PIETERMARITZBURG
A559//2016
Review
No: 11/2016
High
Court Ref No: DR192/16 and DR 193/16
23
May 2017
In
the matter between:
The
State
versus
Thokozani
Eugene Xulu
Review Judgement
Lopes
J
[1]
This is an application which comes before me, in terms of
s 304
(4)
of the
Criminal Procedure Act, 1977
. The history of this matter which
reveals the reason for the review application is as follows:
(a) On the 3
rd
November 2014 in the Mtunzini Magistrates’ Court, Mr Xulu was
convicted under case number A424/2014 in the Mtunzini Magistrates’
Court of contravening
s 4
(b) of the Act. He was fined R900 or to
undergo 90 days’ imprisonment of which R600 or 60 days’
was suspended for five
years on condition that he was not convicted
of contravening
s 4
(b) committed during the period of suspension.
(b) On the 11
th
May, 2015 and in the Mtunzini Magistrates’ Court, Mr Xulu was
convicted of one count of contravening the provisions of s
4(b) of
the Drugs and Drug Trafficking Act, 1992 (the Act) in that he was in
possession of 33 grams of dagga. He was also
convicted of
contravening s 4 (a) of the Act because on the same day he had in his
possession 0.15 grams of chlorphentermine (commonly
referred to as
‘wunga’).
(c) On count one Mr Xulu
was sentenced to pay a fine of R1 500, or in the alternative to
undergo 60 days’ imprisonment.
A further 4 months’
imprisonment was suspended for five years on condition that he was
not again convicted of contravening
s 4 (b) of the Act, which offence
was committed during the period of suspension. On count two, he
was fined R3 000 or
to undergo six months’ imprisonment,
the whole of which was suspended for five years on condition that he
was not again convicted
of contravening s 4 (a) or 5(a) of the Act,
which offence was committed during the period of suspension.
(d) On the 15
th
April 2016 and under case A559/2015, again in the Mtunzini
Magistrates’ Court, Mr Xulu was convicted of contravening the
provisions of s 4 (b) of the Act, as he was found in possession of
0.244 grams of dagga.
(e) On the 29
th
April 2016 he was sentenced to pay a fine of R2 000 or undergo
60 days’ imprisonment, with a further four months’
imprisonment being suspended for five years on condition that he was
not again convicted of contravening s 4 (a) or 4 (b) of the
Act,
which offence was committed during the period of suspension.
[2]
On the 20
th
May 2016 and under case number A440/2014 in
the Mtunzini Magistrates’ Court, the state sought to put into
operation the sentences
which had been suspended. However:
(a) The learned
Magistrate ordered that the suspended sentence of R1 500 or 60
days’ imprisonment imposed on the 11
th
May 2015 be
brought into operation. This was clearly an error because the
sentence which the learned Magistrate put into operation
was the
sentence which was operative, and not the sentence which was
suspended.
(b) The learned
Magistrate also put into operation the sentence of R3 000 or six
months’ imprisonment, which was the
second count imposed on the
11
th
May 2016. This was also an error because the
sentence of R3 000 or six months’ imprisonment which was
suspended
for five years on condition that Mr Xulu not again commits
an offence in contravention of s 4 (a) or 5 (a) of the Act. The
offence
which triggered the implementation of the suspended sentence
was an offence in terms of s 4 (b) of the Act.
(c) In the premises,
neither of the suspended sentences should have been put into
operation. The first because it referred
to the wrong part of
the sentence, and the second because the suspended sentence was not
made conditional upon a contravention
of the crime of which Mr Xulu
was convicted under case number A559/2015.
(d) In addition, under
case number A424/2014 the learned Magistrate incorrectly put into
effect a suspended sentence of R900 or
90 days’ imprisonment.
This was incorrect because, of the sentence of R900 or 90 days’
imprisonment, R600 or
60 days’ was suspended for five
years on condition that Mr Xulu was not convicted of contravening s 4
(b) of the Act. All
that could have been put into operation on the
20
th
May 2016 was the R600 or 60 days’ imprisonment:
[3]
Despite what has been said in the application for special review
(Special Review 11/2016B) it appears that the incorrect
implementation
of the suspended sentences was done under case number
A440/2014. In the light of the apparent confusion I intend to make an
order
which will cater for either case.
Accordingly
I make the following order:
a)
The order
of the 11
th
May 2016 putting into operation the suspended sentence of R1 500
or 60 days’ imprisonment;
b)
the order
of the 11
th
May 2016 putting into operation the suspended sentence of R3 000
of six months’ imprisonment; and
c)
the putting
into operation of the suspended sentence of R900 or 90 days’
imprisonment on the 20
th
May 2016 in relation to case number A424/2014.
are
all reviewed and set aside whether those suspended sentences were put
into operation under case number A440/2014 or A559/2015.
__________________
Graham
Lopes J
I
agree.
__________________
Mnguni
J